William Hill
John Disney / ALM

In the wake of a judge's ruling pushing back the trial date for accused killer Claud “Tex” McIver by more than four months, his attorney won't come right out and accuse prosecutors of using a last-minute document dump of more than 80,000 emails as a strategic move to gain time to build their case.

But William Hill Jr. said it was the Fulton County district attorney's office that sat on the thousands of pages of documents until the Oct. 30 trial date drew near before turning them over and using them as an excuse to seek a continuance.

“Our position has always been that we were ready for trial; we never asked for a continuance,” said the Polsinelli shareholder. “The fact of the matter is that the state is not ready to go to trial.”

On Wednesday, Fulton County Superior Court Judge Robert McBurney reset the trial for March 5 and granted McIver a $750,000 bond.

McIver, a 74-year-old attorney and former Fisher & Phillips partner, is accused in the shooting death of his wife, Diane McIver, last September. He has been in the Fulton County Jail since McBurney revoked an earlier bond in April after a gun was found in McIver's sock drawer.

Among the terms of his bond, McBurney wrote, McIver was barred from having any firearms. “This includes all sock drawers,” his order said.

During a hearing on a prosecution motion to postpone the trial Wednesday, “we made it clear to the court that we could agree to a continuance only if Mr. McIver was out of jail,” Hill said.

In postponing the trial, McBurney's order said the state “belatedly produced in excess of 180,000 emails associated with accounts used by the victim.”

McBurney's order noted that the documents must be reviewed not only by the defense but also by an independent review team to make sure they contain no privileged information.

Hill said that, in fact, the state produced about 190,000 emails which, with included attachments, amounted to more than 130,000 documents.

“The state has had all of this since April or even March,” Hill said. “Judge McBurney issued an order requiring reciprocal discovery on July 7, yet they five us all of this at the 11^th hour. You decide whether it's a tactical decision.”

Hill said the move comports with the state's apparent rush to charge and convict McIver, who was initially charged with involuntary manslaughter.

“At the first appearance hearing, [lead prosecutor] Clint Rucker announced that this was a murder case. All he had was the Atlanta Police Department's investigative file stating it was an unintentional shooting,” Hill said.

He said McIver was eager to leave the jail, where he has lost about 30 pounds and developed a severe skin rash.

There was no immediate response from the office of Fulton County District Attorney Paul Howard Jr. regarding McBurney's order.

Criminal defense attorneys not involved with the case said the pair of orders could hold benefits for both sides.

“This is such an advantage to the state,” said Merchant Firm partner Ashleigh Merchant. “They have so much more time to go through and dig for evidence. … And there's also the stress on the defendant awaiting trial.”

“There's no real surprise that they had to continue it, because there's been such a data dump,” said Merchant. “Judge McBurney recognized this; you can't just dump all this data right before trial. And the only fair thing to do was grant a bond.”

“The problem in Fulton in general is that they indict cases so quickly, then do the investigation. If you're going to indict a case, you've got to be ready for trial,” she said

In McIver's case, Merchant said, “they indicted, then tried to find a motive.”

Steel Law Firm principal Brian Steel said granting a bond is “generally a wonderful opportunity for the accused. Whenever a person is in custody and then on trial, the Fulton County Jail wakes them up at approximately 3 in the morning. The food is horrible, the air they breathe is terrible, there's no exercise.”

In such a state, he said, even a younger defendant is unlikely to be able to provide much assistance in his defense.

“Now Mr. McIver will be able to get proper nourishment and will be much more suited to go through the long process of the trial,” he said.

Steel said he could not say whether the state had rushed to trial, but “I can't imagine that a district attorney would rush this case to trial.”

“The additional time will clearly benefit Mr. McIver, but I believe both sides will be 100 percent prepared.”

“This is not a complicated case,” Steel said. “It's a critical case—every case is critical—but it's a pretty small event. You're in a car, there's a gunshot; there's not a conspiracy over the last three years or something.”

William Hill
John Disney / ALM

In the wake of a judge's ruling pushing back the trial date for accused killer Claud “Tex” McIver by more than four months, his attorney won't come right out and accuse prosecutors of using a last-minute document dump of more than 80,000 emails as a strategic move to gain time to build their case.

But William Hill Jr. said it was the Fulton County district attorney's office that sat on the thousands of pages of documents until the Oct. 30 trial date drew near before turning them over and using them as an excuse to seek a continuance.

“Our position has always been that we were ready for trial; we never asked for a continuance,” said the Polsinelli shareholder. “The fact of the matter is that the state is not ready to go to trial.”

On Wednesday, Fulton County Superior Court Judge Robert McBurney reset the trial for March 5 and granted McIver a $750,000 bond.

McIver, a 74-year-old attorney and former Fisher & Phillips partner, is accused in the shooting death of his wife, Diane McIver, last September. He has been in the Fulton County Jail since McBurney revoked an earlier bond in April after a gun was found in McIver's sock drawer.

Among the terms of his bond, McBurney wrote, McIver was barred from having any firearms. “This includes all sock drawers,” his order said.

During a hearing on a prosecution motion to postpone the trial Wednesday, “we made it clear to the court that we could agree to a continuance only if Mr. McIver was out of jail,” Hill said.

In postponing the trial, McBurney's order said the state “belatedly produced in excess of 180,000 emails associated with accounts used by the victim.”

McBurney's order noted that the documents must be reviewed not only by the defense but also by an independent review team to make sure they contain no privileged information.

Hill said that, in fact, the state produced about 190,000 emails which, with included attachments, amounted to more than 130,000 documents.

“The state has had all of this since April or even March,” Hill said. “Judge McBurney issued an order requiring reciprocal discovery on July 7, yet they five us all of this at the 11^th hour. You decide whether it's a tactical decision.”

Hill said the move comports with the state's apparent rush to charge and convict McIver, who was initially charged with involuntary manslaughter.

“At the first appearance hearing, [lead prosecutor] Clint Rucker announced that this was a murder case. All he had was the Atlanta Police Department's investigative file stating it was an unintentional shooting,” Hill said.

He said McIver was eager to leave the jail, where he has lost about 30 pounds and developed a severe skin rash.

There was no immediate response from the office of Fulton County District Attorney Paul Howard Jr. regarding McBurney's order.

Criminal defense attorneys not involved with the case said the pair of orders could hold benefits for both sides.

“This is such an advantage to the state,” said Merchant Firm partner Ashleigh Merchant. “They have so much more time to go through and dig for evidence. … And there's also the stress on the defendant awaiting trial.”

“There's no real surprise that they had to continue it, because there's been such a data dump,” said Merchant. “Judge McBurney recognized this; you can't just dump all this data right before trial. And the only fair thing to do was grant a bond.”

“The problem in Fulton in general is that they indict cases so quickly, then do the investigation. If you're going to indict a case, you've got to be ready for trial,” she said

In McIver's case, Merchant said, “they indicted, then tried to find a motive.”

Steel Law Firm principal Brian Steel said granting a bond is “generally a wonderful opportunity for the accused. Whenever a person is in custody and then on trial, the Fulton County Jail wakes them up at approximately 3 in the morning. The food is horrible, the air they breathe is terrible, there's no exercise.”

In such a state, he said, even a younger defendant is unlikely to be able to provide much assistance in his defense.

“Now Mr. McIver will be able to get proper nourishment and will be much more suited to go through the long process of the trial,” he said.

Steel said he could not say whether the state had rushed to trial, but “I can't imagine that a district attorney would rush this case to trial.”

“The additional time will clearly benefit Mr. McIver, but I believe both sides will be 100 percent prepared.”

“This is not a complicated case,” Steel said. “It's a critical case—every case is critical—but it's a pretty small event. You're in a car, there's a gunshot; there's not a conspiracy over the last three years or something.”